2018 Ohio 4299
Ohio Ct. App.2018Background
- Javier H. Armengau was convicted by a Franklin County jury in July 2014 of multiple sexual offenses and sentenced to 13 years' imprisonment.
- Armengau filed a Crim.R. 33(B) motion (Aug. 7, 2015) for leave to file a delayed motion for new trial supported primarily by an affidavit from Diane Caldwell asserting a victim said the acts were consensual; the trial court denied leave without an evidentiary hearing.
- This court in an earlier appeal (Armengau I) affirmed the trial court's denial of leave, finding Armengau failed to show he was unavoidably prevented from filing timely under Crim.R. 33(B).
- A later multi-issue appeal (Armengau II) affirmed most convictions but reversed/resolved sentencing and sex-offender-classification issues; the majority rejected claims of prosecutorial/witness misconduct and insufficient evidence on the merits.
- After Armengau II, Armengau sought (Sept. 19, 2017) reconsideration of the 2015 denial and, alternatively, a second motion for leave to file a delayed new trial motion (relying again on Caldwell’s affidavit); the trial court denied both as barred and untimely.
- On appeal the Tenth District held the trial court lacked jurisdiction to reconsider issues already affirmed on direct appeal and that Armengau’s filings presented no newly discovered evidence that would overcome law-of-the-case/res judicata or Crim.R. 33(B) timeliness defects.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Armengau) | Held |
|---|---|---|---|
| 1) Did the trial court retain jurisdiction to reconsider or permit a delayed new-trial motion after the appellate affirmance? | Trial court lacked jurisdiction because the appellate judgment is controlling; matters affirmed on appeal cannot be relitigated absent a remand. | Trial court should consider reconsideration / second leave motion because Armengau’s post-appeal developments (including Armengau II) support his new-trial grounds. | The trial court lacked jurisdiction to revisit issues already decided on direct appeal; denial affirmed. |
| 2) Could Caldwell’s affidavit count as newly discovered evidence under Crim.R. 33(A)(6) after appeal? | The affidavit was not newly produced — it was the same material relied on in the original leave motion; no new evidence was presented. | The affidavit (and the appellate disposition) supports reconsideration/new trial as newly discovered evidence. | The court held Caldwell’s affidavit was not newly discovered in a way that would permit relitigation; Davis permits post-appeal Crim.R.33(A)(6) motions only for evidence outside the record, not repeat submissions. |
| 3) Does the law-of-the-case or res judicata doctrine bar relitigation of issues raised/available on direct appeal? | Law-of-the-case/res judicata preclude relitigating claims that were or could have been raised on appeal; Armengau already had an appeal addressing these issues. | Armengau argued Armengau II’s dissent and partial reversals created grounds to revisit convictions. | The court applied law-of-the-case: Armengau I’s rulings on timeliness and leave remain controlling; the dissent in Armengau II and sentencing remand did not reopen the convicted-issues for new trial. |
| 4) Was Armengau’s second motion timely under Crim.R. 33(B)? | The second motion was untimely and failed to show clear-and-convincing proof of unavoidable prevention or reasonable diligence. | Armengau contended he filed within a reasonable time after discovering the evidence and that appellate developments justify relief. | The court held the motion was untimely and that Armengau failed to meet Crim.R.33(B)’s standards; prior denial makes timeliness problems preclusive. |
Key Cases Cited
- State ex rel. Special Prosecutors v. Judges, 55 Ohio St.2d 94 (1978) (trial court loses jurisdiction over matters within the scope of a pending appeal; cannot act inconsistent with appellate judgment)
- State v. Davis, 131 Ohio St.3d 1 (2011) (trial court may retain jurisdiction post-affirmance to hear Crim.R. 33(A)(6) motions based on newly discovered evidence outside the appellate record)
- State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229 (2009) (lower courts lack jurisdiction to grant relief that is inconsistent with appellate court rulings)
- Arnott v. Arnott, 132 Ohio St.3d 401 (2012) (discusses standard of review for legal questions and appellate control over subsequent proceedings)
- Nolan v. Nolan, 11 Ohio St.3d 1 (1984) (sets out the law-of-the-case doctrine and its effect on subsequent proceedings in the same case)